SB 93-SPECIALTY LICENSE PLATES  8:08:59 AM CHAIR LYNN announced that the first order of business was SENATE BILL NO. 93, "An Act relating to special request specialty organization registration plates; and providing for an effective date." 8:10:12 AM REPRESENTATIVE KELLER moved to adopt the proposed House committee substitute (HCS) for SB 93, Version 27-LS0515\I, Luckhaupt, 3/30/11, as a work draft. REPRESENTATIVE GRUENBERG objected for the purpose of discussion. 8:10:34 AM NANCY MANLY, Staff, Representative Bob Lynn, Alaska State Legislature, explained the changes that were made in Version I of SB 93. She stated that in addition to adopting the bill sponsor's plan to give the Division of Motor Vehicles (DMV) the authority to issue specialty license plates, Version D would also create specialty license plates for the National Rifle Association, breast cancer awareness, Lao veterans, and plates depicting "In God We Trust" and "Choose Life." 8:11:23 AM REPRESENTATIVE SEATON asked if, other than the addition of the specific specialty license plates, there would be any changes made to the original bill version. CHAIR LYNN offered his understanding that there would be no change within the original bill language. 8:12:18 AM SENATOR BILL WIELECHOWSKI, Alaska State Legislature, presented SB 93 on behalf of the Senate State Affairs Standing Committee, sponsor, on which Senator Wielechowski is chair. He expressed concern regarding the language in Version I proposing a specialty plate for "choose life." He explained that courts have traditionally upheld that when one viewpoint is supported, the opposing viewpoint must also be supported. He said he has been told there are some organizations that may file a law suit if there is a "choose life" license plate without there also being a specialty plate for Planned Parenthood. In regard to Representative Seaton's previous question, he said it does not look like any of the original language in the bill has been altered. 8:14:22 AM CHAIR LYNN stated his understanding that under SB 93, any group that is not included could go to the division and request a specialty license plate of their choosing. SENATOR WIELECHOWSKI confirmed that is correct, but said there are those who would maintain that [Version I] is unconstitutional. 8:16:15 AM REPRESENTATIVE GRUENBERG observed that if the committee chooses to remove the language in the bill pertaining to "choose life," it would need to delete lines 7-14, on page 4, and lines 7-12, on page 2. SENATOR WIELECHOWSKI confirmed that is correct. 8:16:47 AM REPRESENTATIVE P. WILSON said she does not understand where the complaint could be if everyone will be allowed to have a plate of their choosing. SENATOR WIELECHOWSKI said there have been cases around the country to this effect. REPRESENTATIVE P. WILSON reiterated that she does not understand why a law suit would result when all along groups have had the opportunity to request a specialty license plate through the legislature and would, under SB 93, have the opportunity to do so directly through the division. 8:18:22 AM REPRESENTATIVE GRUENBERG said he has prepared an amendment, but has not decided yet whether to offer it. CHAIR LYNN said he does not want this bill hearing to turn into a Planned Parenthood/right to life debate. 8:20:13 AM KARLA HART, Staff, Representative Bill Wielechowski, Alaska State Legislature, answered questions related to SB 93 on behalf of the Senate State Affairs Standing Committee, sponsor, of which Senator Wielechowski is chair. In response to Representative Seaton, regarding the application fee that the organization would charge for the setup, she clarified that under SB 93, that cost is revenue neutral; there would be a fee set to cover those setup charges. Under the current process, she continued, the DMV absorbs the cost of the setup and development of the specialty license plates. REPRESENTATIVE SEATON asked for confirmation that that is the only distinction. MS. HART prefaced her answer by noting that she is not an attorney. She pointed out one distinction is that legislatively approved plates are considered a form of government speech, whereas administratively approved plates appear to be a form of private speech. She said she thinks there may be some distinction there in terms of a court case. She further noted that the courts have ruled differently in various states. 8:22:23 AM REPRESENTATIVE GRUENBERG stated his understanding that other plate designs would mean additional costs. MS. HART clarified that the group supplying the design would incur the cost. 8:23:12 AM REPRESENTATIVE SEATON directed attention to language on page 3, line 10, which requires a group to "submit registration fees for at least 50 motor vehicles before specialty registration plates will be issued". He said he may offer an amendment to lower that threshold, because there may be smaller groups that desire specialty license plates. 8:24:29 AM REPRESENTATIVE GRUENBERG directed attention to page 3, line 12, which read as follows: (D) may not be offensive in purpose, nature, activity, or name; REPRESENTATIVE GRUENBERG expressed concern about the meaning of offensive and whether this language may present constitutional problems. 8:25:23 AM SENATOR WIELECHOWSKI responded that there is a well-established body of case law around the country to address this issue. In response to a follow-up question, he confirmed that this language is not unique to Alaska. 8:26:28 AM MS. HART said Pennsylvania's model states that "the department may refuse any combination of letters and numbers for cause and shall adopt rules and regulations for the issuance of plates." She said Pennsylvania's regulation addresses the issue of offense and discriminatory content. 8:27:11 AM REPRESENTATIVE KELLER said he would be proposing a sunset clause so that the proposed legislation could undergo a trial period. 8:29:23 AM JEFFREY A. MITTMAN, Executive Director, American Civil Liberties Union of Alaska (ACLU of Alaska), stated that the ACLU does not take a position for or against the State of Alaska having a specialty license plate program. Furthermore, he said the ACLU does not take a position on whether or not certain individuals or organizations should be entitled to create plates. The ACLU looks solely at constitutional issues. He cited Arizona Life Coalition Inc. v. Stanton, 515 F.3d 956, a 9th Circuit Court of Appeals case in which the court protected the rights of the "Choose Life" organization to obtain a plate under Arizona's license plate system. He said the ACLU would have similarly represented the "Choose Life" organization. MR. MITTMAN said [Version I] discriminates both in the matter of process and content. Under Version I, if one person wanted to obtain a National Rifle Association (NRA) plate, for example, and nine individuals wanted to obtain a Brady handgun control plate, the one individual could go down to the DMV and get the NRA plate, whereas the nine individuals would not be given the opportunity to get the Brady handgun control plate. He said that is not only process discrimination, but also viewpoint discrimination. CHAIR LYNN suggested that under the original bill, those people could go to the DMV and apply for "one of these other license plates expressing a different viewpoint." MR. MITTMAN responded that they could apply, but "if they didn't meet the differential requirements that the process establishes they could not be successful." He explained that Version I sets out certain viewpoints to be more privileged than others, which could be viewed by the court as discrimination. First Amendment rights are so important that the courts are protective of them. MR. MITTMAN stated that SB 93, as originally written, was "perfectly neutral"; it set up one system for the entire state. He stated, "It is our recommendation ... that ... all organizations who have had any sort of bill be approved, and that the legislature put in language that allows for approval." He noted that SB 16, which passed through the Senate, allowed for "pro-family" and "pro-choice"; therefore, it would be "part of the legislative record in revealing whether or not the legislature has been neutral in both process and concept." 8:34:17 AM MR. MITTMAN, in response to Representative Gruenberg's concern regarding the interpretation and constitutionality of the word "offensive", said potentially that language could be an opportunity for a government agency to deny language. However, he stated, "We see this as a light yellow flag; it is something that we'd watch, but we would not anticipate that it would be a problem." 8:35:20 AM CHAIR LYNN, after ascertaining that there was no one else who wished to testify, closed public testimony. REPRESENTATIVE GRUENBERG removed his objection to the motion to adopt the proposed House committee substitute (HCS) for SB 93, Version 27-LS0515\I, Luckhaupt, 3/30/11, as a work draft. There being no further objection, Version I was before the committee. 8:35:38 AM REPRESENTATIVE SEATON moved to adopt Amendment 1, as follows: Page 3, line 10: Change "50" to "10". There being no objection, Amendment 1 was adopted. 8:36:06 AM REPRESENTATIVE KELLER moved to adopt Conceptual Amendment 2, to add a sunset clause on page 5 relating to subsection (gg) in Section 1. REPRESENTATIVE KELLER said he is concerned about [specialty license plates being used much like] a bumper sticker. In response to a question from the chair, he explained that [subsection (gg)] is language in Version I that was also in the original bill version. He noted that the date of the sunset clause that would be added under Conceptual Amendment 2 would be June 1, 2014. 8:38:21 AM REPRESENTATIVE SEATON objected to Conceptual Amendment 2 for the purpose of discussion. He said he does not see a problem which necessitates an audit and sunset process. REPRESENTATIVE KELLER stated his intent is to be cautious. 8:42:04 AM WHITNEY BREWSTER, Director, Division of Motor Vehicles (DMV), Department of Administration, stated that the DMV's regulations have been helpful in determining how the division deals with personalized license plates, and the division would use similar language of that regulation in dealing with organizations applying for a plate. She said if the proposed legislation passes, her preference would be to receive feedback from the legislature regarding the division's regulatory process. She said she understands Representative Keller's concern that the proposed legislation would give responsibility to the DMV to determine which organizations are appropriate. MS. BREWSTER said the DMV currently has an administrative hearing process wherein someone who is denied a plate has the opportunity to request an administrative hearing. If the person does not agree with the hearing officer, he/she has the option of appealing to the Alaska Superior Court. She ventured that the process under SB 93 would be similar. She acknowledged that these considerations do not address specifically Representative Keller's concern that there might be "an Amway plate," for example; however, she said the court has consistently stated that the issue is one of free speech, and if specialty plates were made available to 501c3 organizations, then the division would have to seriously consider that issue when making a determination. REPRESENTATIVE KELLER acknowledged that Ms. Brewster shares his concerns, and he reiterated his support for Conceptual Amendment 2. 8:46:17 AM MS. BREWSTER, in response to Representative Petersen, related that the division uses software that will catch most of the inappropriate language submitted before a plate is issued; however, some inappropriate requests slip through that screening. She said the division denies 6-7 inappropriate license applications a week, but few of those denials result in a challenge, because the reason for the denial is obvious. She estimated that the division holds one specialty plate hearing per quarter. She incidentally reported that the DMV offers fraternal organization plates established through statute last session, but no one has applied for one to date. She noted that that legislation was the first to open the door to various entities requesting a plate not through the legislative process. REPRESENTATIVE PETERSEN said it does not make sense that a [501c3] organization would go to the trouble to make an indecent license plate that would be turned down by the division. MS. BREWSTER offered her understanding that Pennsylvania has thus far had one plate that was questioned as being offensive; however, she said she does not foresee this being a big issue in Alaska. She reiterated that if the organization is denied a plate, it has an avenue for appeal. 8:50:24 AM REPRESENTATIVE KELLER, in response to Representative Gruenberg, clarified that Conceptual Amendment 2 would place a sunset to subsection (gg); it would not delete the section. 8:51:24 AM REPRESENTATIVE JOHANSEN asked the bill sponsor what he thinks of Conceptual Amendment 2. SENATOR WIELECHOWSKI noted the short time period between the effective date of the bill and the proposed date of the sunset. 8:52:03 AM REPRESENTATIVE KELLER moved to amend Conceptual Amendment 2, to change 2014 to 2015. There being no objection, the amendment to Conceptual Amendment 2 was adopted. SENATOR WIELECHOWSKI pointed out that the purpose of the bill is to end the necessity for the legislature to address license plate bills, and [Conceptual Amendment 2, as amended] will bring the issue of license plates back before the legislature. 8:52:38 AM REPRESENTATIVE SEATON maintained his objection to Conceptual Amendment 2, as amended. He said if the legislation proves to be problematic, the legislature can always choose to bring the issue back for further discussion. 8:53:31 AM A roll call vote was taken. Representatives Johansen, P. Wilson, Keller, and Lynn voted in favor of Conceptual Amendment 2, as amended. Representatives Seaton, Gruenberg, and Petersen voted against it. Therefore, Conceptual Amendment 2, as amended, was adopted by a vote of 4-3. 8:54:15 AM REPRESENTATIVE GRUENBERG asked the bill sponsor what he thought - following Mr. Mittman's testimony - about removing the language in the proposed legislation referring to "Alaska Choose Life". 8:56:08 AM SENATOR WIELECHOWSKI said he would support such an amendment, because he thinks it would resolve the constitutional issues that have been presented. 8:56:27 AM REPRESENTATIVE GRUENBERG moved to adopt Conceptual Amendment 3, as follows: Page 2, lines 7-12: Delete language Page 4, lines 7-14: Delete language REPRESENTATIVE JOHANSEN objected. REPRESENTATIVE SEATON said he does not support Conceptual Amendment 3. He said specialty license plates currently are established in state law and [under SB 93] would be managed administratively, which would result in the existence of specialized plates from two systems. He stated, "I don't think looking at one particular plate overcomes two systems." 8:57:56 AM REPRESENTATIVE JOHANSEN explained that he objects to Representative Gruenberg's singling out the "Choose Life" plate as articulating one point of view, and he said he would like to express his point of view regarding the meaning of "Choose Life". 8:58:54 AM The committee took a brief at 8:59 a.m. 8:59:14 AM REPRESENTATIVE JOHANSEN said he does not know what particular point of view Representative Gruenberg is referring to, because "Choose Life" could mean don't commit suicide. He indicated his objection was to the characterization of "that statement as something in particular" and the singling out of it when "there are other portions of this bill that ... could fall under this umbrella." REPRESENTATIVE JOHANSEN maintained his objection. 9:00:42 AM REPRESENTATIVE GRUENBERG said he thinks there is merit in some points that have been made, and he said he would like to know whether the bill sponsor maintains his support of Conceptual Amendment 3. SENATOR WIELECHOWSKI responded that he finds it ironic that he introduced the original version of SB 93 as a means to end all the time spent by the legislature in considering individual specialized license plates and Version I introduces several individual plates for the legislature to consider. He said as an attorney, one of the first rules is to protect the client from being sued, and there has been testimony that leaving "Choose Life" in Version I would lead to a law suit against the state; therefore, he said he would like "Choose Life" taken out of the bill. 9:01:59 AM REPRESENTATIVE GRUENBERG stated that he would maintain his motion to adopt Conceptual Amendment 3 out of respect for the bill sponsor. 9:02:13 AM A roll call vote was taken. Representatives Petersen and Gruenberg voted in favor of Conceptual Amendment 3. Representatives Johansen, P. Wilson, Seaton, Keller, and Lynn voted against it. Therefore, Conceptual Amendment 3 failed by a vote of 2-5. 9:03:09 AM REPRESENTATIVE KELLER moved to report the House committee substitute (HCS) for SB 93, Version 27-LS0515\I, Luckhaupt, 3/30/11, as amended, out of committee with individual recommendations and the accompanying fiscal notes. There being no objection, HCS SB 93(STA) was reported out of the House State Affairs Standing Committee.